NLRB issues final rule requiring posting of Notice to Employees

The National Labor Relations Board (NLRB) has issued a new rule that requires almost all U.S. employers to post a notice to employees informing them of their right to organize and join a union. In December of 2010, the Board proposed the rule based on its belief that many employees covered by the National Labor Relations Act are unaware of their rights under the Act, and that posting a notice would increase employee knowledge of those rights and increase the exercise of them.

After receiving more than 7,000 comments to the proposed rule, on August 25, 2011, the NLRB issued the final rule, which will be published in the Federal Register and go into effect in 75 days. That means that come November 14, 2011, almost all private sector employers will have to post a notice, in a place where similar notices are posted in the workplace (including, if necessary, in additional languages if more than 20 percent of the workforce speaks a language other than English), as well as on employer internet or intranet sites (if the employer regularly communicates with employees about personnel rules or policies by such means), informing employees of their right to, among other things:  

  • organize a union to negotiate wages, hours, and other terms and conditions of employment;
  • discuss wages and benefits and other terms and conditions of employment or union organizing with co-workers or a union;
  • take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with an employer or with a government agency, and seeking help from a union;
  • strike and picket, depending on the purpose or means of the strike or the picketing; and
  • to choose not to do any of these activities, including joining or remaining a member

of a union.

The full text of approved notice language appears at pages 185 to 190 of the Notice (http://www.ofr.gov/OFRUpload/OFRData/2011-21724_PI.pdf), and contains other explicit statements and examples of employee rights under the NLRA. The new rule also makes it an unfair labor practice for an employer to fail to post an appropriate notice.

The Board’s issuance of this new notice posting requirement for private sector employers (which is similar to a requirement it imposed last year on federal contractors and their subcontractors) is seen by many as part of the Board’s ongoing efforts to shift federal labor policy in favor of organized labor. In light of the failure of the Obama administration to obtain passage of the controversial, pro-union Employee Free Choice Act, the Board has undertaken a number of initiatives viewed as highly skewed towards assisting unions, including another proposed rule designed to shorten the period for union elections, soliciting proposals to facilitate electronic voting in elections, as well as certain highly-publicized prosecutorial decisions, including its recent interest in social media cases and its pursuit of controversial unfair labor practice remedies.  

Employers should make the necessary preparations to comply with the new posting requirement.